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이희훈 ( Hie Houn Lee ) 연세대학교 법학연구원 2008 法學硏究 Vol.18 No.4
Freedom of press of mass media is a basic right guaranteed by Article 21 of the Korean Constitutional law that is necessary in realizing the people` right to know and democracy. For mass media to faithfully perform its given role, collection of plentiful and trustworthy information is absolutely necessary. An intimate trust relationship between mass media and news source must be premised to guarantee that the identity of the news source will not be made known to public by mass media. If the identity of the news source is opened to public, the news source may cause difficulty in realizing Freedom of speech and press the de facto the Constitutional law, the people` right to know, and democracy by hesitating to provide important information to mass media because of social and economic disadvantages that may arouse. Therefore, it is appropriate for the Constitutional law to guarantee the Journalist`s Privilege of Protecting Confidential the News Source, or the right of the news source to refuse to make known one`s identity to news reporters. For such reasons, The Journalist`s Privilege of Protecting Confidential the News Source is a right that must be guaranteed in order to realize freedom of news gathering. Since freedom of news gathering belongs to the content on freedom of press under Article 21 Freedom of speech and the press in the Constitutional law, it is reasonable to consider the Journalist`s Privilege of Protecting Confidential the News Source as the basic right that belongs to Freedom of speech and the press in Article 21 of the Constitutional law. In addition, the Journalist`s Privilege of Protecting Confidential the News Source must be broadly guaranteed for all legal procedures including civil and criminal procedures in courts and investigation procedures and so on such as seizure or search by the police or prosecutors. The Journalist`s Privilege of Protecting Confidential the News Source is materialized in forms of `right to refuse to testify`, `right to refuse submission of data`, and `immunity right from search and seizure`. Also, the subject of the Journalist`s Privilege of Protecting Confidential the News Source is a `media reporter`, and the scope of `media reporter` must be limited to `a person professionally working in officially recognized regular publications or broadcast or had been engaged in such profession before` to exclude unrecognized media such as media related to the internet. Object of protection by the Journalist`s Privilege of Protecting Confidential the News Source is the entire matter on possibility of revelation of the identity of the news source. On one hand, while criminal punishments are given in accordance to Articles 151, 152 and 162 of Criminal Procedure Law by interpretation the de facto the current Law in our nation if a news reporter refuses to testify at a court, it is most appropriate to recognize the right of news reporters to argue for the security of news source in a civil action because news reporters belong to the news source under `confidence of occupation` regulated in Article 315 Clause 1 Provision 2 of Civil Procedure Law. Meanwhile, 32 states of the Unites States of America currently recognize the Journalist`s Privilege of Protecting Confidential the News Source by regulating the `Shield Law`, and Germany also recognizes the Journalist`s Privilege of Protecting Confidential the News Source in Article 53 Clause 1 Provision 4 of Federal Criminal Procedural Law and in Article 383 Clause 1 Provision 5 of Federal Civil Proceedings Law of Germany. However, while the Supreme Court of the United States is negative in recognizing the Journalist`s Privilege of Protecting Confidential the News Source for criminal procedural cases, it recognized the security for civil proceedings cases. In addition, the Federal Constitutional Court of Germany and the Supreme Court of Japan also recognized the Journalist`s Privilege of Protecting Confidential the News Source. Since our nation will also need to recognize the Journalist`s Privilege of Protecting Confidential the News Source in the future by enacting a related law under the premise that the Journalist`s Privilege of Protecting Confidential the News Source is guaranteed on a consitutional level, it would be appropriate to decide the limitation on the scope of the security without breaking the principle of balance for guarantee of national security, maintenance of order, or public welfare stated in Article 37 Clause 2 of the Constitutional law.
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